STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DIANE HUNTER, Employee

RACINE UNIFIED SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01605072RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed October 3, 2001
huntedi . usd : 105 : 9  PC 714.02  PC 714.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer correctly points out in its petition for review that the rules of evidence do not apply to such administrative proceedings as hearings before department administrative law judges. Nonetheless, the administrative law judges and commission still are bound by Wis. Admin. Code § DWD 140.16, which states in material part that no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

The employer's sole witness at hearing was a Ms. Larson, a benefits specialist in the employer's Human Resources Department. She introduced into evidence a note from a Carolyn Banks to a Ms. Saldana. First, at the very least the attendance claim against the employee is hearsay, if not second-level hearsay. Essentially, it is Ms. Banks telling Ms. Saldana, who then relayed the message to the employer's witness at hearing, that the employee was absent on December 19. Second, the memorandum itself indicates that the employee's absence was due to illness, a valid reason for missing work.

The same evidentiary reasoning applies to the employer's December 14 memorandum. Lynn Helland would be the individual with first-hand knowledge of the employee's attendance failure on one of the two days addressed in the December 14 memorandum. The memorandum is to Ms. Saldana and, again, Ms. Larson's introduction of the memorandum is at least one, if not two, levels removed from first-hand knowledge.

The December 7, 2000 letter from Ms. Reth again is in the same category. It is apparent from the text that Ms. Reth was relaying to Ms. Saldana information Ms. Reth had received about the employee from a teacher to whom the employee had been assigned. Ms. Reth's statements thus were hearsay, and Ms. Larson's introduction of that letter into evidence was either second or third-level hearsay.

The memoranda the employer submitted, are not business records in the evidentiary sense. See Borchardt v. Weyerhaeuser Co., UI Dec. Hearing No. 00002241WR (LIRC 2-22-2001). It is not even clear that these memoranda concern regularly conducted activity, one of the requirements for business records. Further, it is an impermissible stretch to suggest that these memoranda are records, reports, or data compilations within the meaning of Wis. Stat. § 908.03(8). And, finally, given the administrative code prohibition against basing a finding in disposition of an issue solely upon hearsay evidence, the commission has never done so under the so-called catch-all exception to the hearsay prohibition, Wis. Stat. § 908.03(24).

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.


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uploaded 2001/10/09